by Juan Manuel González | Oct 23, 2023 | Noticias-en
The case that we discuss on this occasion is related to a minimum services pact agreed between a company and its union organizations.
Indeed, based on the collective autonomy of the parties, they autonomously decided to enter into a minimum services agreement whose purpose is to maintain certain types of operations in the event of a possible stoppage due to a strike.
In the specific situation to which we allude, one of the unions contemplated in its statutes that its board of directors was made up of four leaders, however, at the time of reaching the minimum services agreement, only two of these remained in force. For this reason, the respective instrument was celebrated, with only the leaders who had the status of active workers on that date signing it.
Once the agreement was reached, the respective agreement was deposited with the Labor Inspection, which issued a resolution rejecting said management and not validating the document signed between the parties, because, in the opinion of the labor administrative authority, it did not satisfy its criteria and standards.
It is against said resolution of the Labor Inspection that the company filed a lawsuit in court, questioning the actions of said department for assuming powers that it does not have.
Therefore, the underlying discussion of this case is, What is the degree of interference that the Labor Directorate can have with respect to a minimum services agreement that has been achieved autonomously and freely between the employer and its union organizations?
The ruling expresses clearly and emphatically (case Rit I-93-2023 of the 1st Labor Court of Santiago) that “Article 360 of the Labor Code, regarding the agreement that union organizations can reach in relation to the matter, has contemplated that the only intervention of the Labor Directorate in the process is to be the depositary of the agreement. Unlike what is provided for in article 223 of the Labor Code, it has not provided powers with respect to this body to make observations to the instrument in the sub-lite case.”
It continues, “It is up to the state bodies to be subject, without exception and in all their actions, to the constitutional norm of article 7 and no other powers can be attributed than those contemplated in the fundamental text and the laws that have been issued in accordance to her. The defendant does not justify sufficiently under the normative assumption that active conduct is justified regarding the questioning of the legitimacy of the instrument that has been delivered to her for collection.”
This is a pronouncement of utmost importance since it clearly delimits the degree of intervention that the Labor Directorate can have regarding a minimum services agreement concluded between the employer and its unions, and restricts any possibility of objecting to it, repairing it or refusing to have it. by deposited, since its role is not predominant when there is a direct agreement between the parties.
For more information you can contact :
Francisca Franzani | Compliance Group Director | ffranzani@az.cl
by Juan Manuel González | Oct 10, 2023 | Noticias-en
The transfer of employees and expatriates to Guatemala is a fundamental process for multinational companies that wish to operate in this Central American country. However, this process is subject to a series of immigration regulations and requirements that can be complex. In this text, we will address the most frequently asked questions that multinational companies usually ask when it comes to transferring employees to Guatemala. From the need to establish a legal presence in the country to the hiring rates of expatriate employees and the different types of residency available, we will explore the key aspects that must be considered to ensure a successful and compliant relocation process in Guatemala.
1. Is it necessary to have a legal presence of the entity in Guatemala for the transfer of expatriate employees?
Legal presence in Guatemala if necessary, which can be achieved through its own branch or subsidiary or through outsourcing.
2. What are the percentages that the entity must meet for hiring expatriate employees in Guatemala?
You can hire up to a maximum of 10% of foreigners and pay them up to a maximum of 15% of the total salaries, giving priority to Guatemalans, but there are exceptional cases where the above does not apply.
3. For what positions can a work permit for foreigners be requested?
For positions of trust such as Managers, directors, General Managers, Administrators and Superintendents, which are exempt from the percentages indicated in the previous question;
For jobs in which there are no Guatemalan personnel trained to fill that position.
4. Until when can I include the foreign worker on the payroll?
Until obtaining the resolution of the work permit.
5. What is the estimated period to include the expatriate worker on the payroll?
It is 1 to 2 months from when the residency file is submitted to the Guatemalan Migration Institute.
6. Prior to the expatriate’s entry into Guatemala, can I start the residency or work permit process?
It is not possible, it is necessary that the foreigner be in Guatemala to begin the processes.
7. What is the period that a foreigner can stay in Guatemala with a traveler or tourist visa?
Without a residency in process, up to a maximum of 90 days, with a tourist or traveler visa that can be extended for the same period.
8. What categories of permanent residences can a foreigner choose?
Permanent residence for foreigners who have been temporary residents for more than 5 years.
Permanent residence for being a relative of a Guatemalan person within the limits of the law.
Permanent residence for rentier or pensioner.
Permanent residence for foreigners who have been married for one year or more or declared a de facto union with a Guatemalan person.
Permanent Residence for those born in other Central American countries when they have been temporary residents for more than one year.
9. What is the difference between the two visas per residence file in process (single or multiple visa)?
The simple visa allows one exit and one entry to Guatemala while the residency is in process.
The multiple visa allows you to leave and enter Guatemala unlimitedly for 90 days.
10. If an expatriate is transferred to Guatemala for a period of less than one year, should temporary residence be requested?
Yes, it is necessary to proceed with obtaining residency.
For more information you can contact:
Juan Carlos Tristán | BLP Partner | jtristan@blplegal.com
by Juan Manuel González | Sep 19, 2023 | Noticias-en
The Labor Inspection (IT) announced the criteria that it will use to control the Occupational Risk Plan (PRL). According to Decree 52/023, companies that employ between 5 and 50 workers must prepare the ORP carried out by a technician with a qualifying title (preventionist technician, occupational health technologist, among others), which must have the content indicated there.
The IT explains and develops the content that the PRL must have, in accordance with the following:
1. Description of the activities carried out by the company.
2. Hazard identification.
3. Risk assessment and its results by recognized and specific methods. The IT clarifies that it must be taken into account that prior to the risk assessment, an evaluation of compliance with the legal requirements that are applicable to the company and its activities should be carried out.
4. Proposed corrective measures.
5. Compliance schedule
6. Date of completion and date of the next scheduled review (minimum every six months).
7. In the document, the responsible technician must indicate whether or not he recommends the need to have a Greeting Prevention Service at Work regulated in Decree 127/014.
8. Signature and identifying data of the technician responsible for the document.
9. Signature of the owner or legal representative of the company in the PRL.
10. Proof of presentation and treatment of the ORP in the field of bipartite cooperation (Occupational Health and Safety Commission). If this bipartite scope was not established, the company must present a declaration in this regard and proof of communication to the PRL workers.
For more information contact:
Carla Arellano | Counselor Ferrere | carellano@ferrere.com
by Juan Manuel González | Apr 13, 2023 | Noticias-en
The Ministry of Labour, Employment and Social Welfare, after the constant reduction in infections, has determined a new regulation and application of the working day, which will be in force from March 6, 2023.
The following modifications stand out:
Public institutions and private companies must apply a “Discontinuous Hours” of eight (8) hours a day, with a rest period between work shifts.
Private companies are obliged to apply the Discontinuous Schedule; however, they can adapt the entry and exit hours of the workers according to the nature of their activities.
Public companies may request continuous working hours under the following circumstances:
For reasons related to the physical safety of workers, who require natural light to provide services.
To provide a better service to the community, ensuring effectiveness, efficiency, and responsibility in the care of the population.
Public institutions and private companies, in order to avoid contagion by COVID – 19, must continue to implement the following measures:
Staggered entry and exit of work
Alternation of personnel, between face-to-face assistance and teleworking, from one (1) to two (2) days every other day, due to working conditions and the number of workers.
Application of special working conditions, such as ensuring the same rights and guarantees for face-to-face personnel as for teleworking.
Any other biosecurity measure, in addition to the protocols established by the Ministry of Health and Sports.
For more information contact:
Carla Arellano | Counselor Ferrere | carellano@ferrere.com